Wednesday, March 28, 2007

I had been following the "Bong Hits For Jesus" controversy, if you can call it that. I enjoy seeing Fascist tendencies unveiled. In fact, I have to admit to being a little obsessed. The complexities of the political coalitions....very interesting. (Check here, particularly "What would Jesus smoke?"). Anyway, it is pretty wonderful.

But, John Lott sends a nice lagniappe via email. You can find the entire case here....but the money quote, from Judge Andrew Kleinfeld, is this:

All sorts of missions are undermined by legitimate and protected speech -- a school's anti-gun mission would be undermined by a student passing around copies of John R. Lott's book,'More Guns, Less Crime;' a school's anti-alcohol mission would be undermined by a student e-mailing links to a medical study showing less heart disease among moderate drinkers than teetotalers; and a school’s traffic safety mission would be undermined by a student circulating copies of articles showing that traffic cameras and automatic ticketing systems for cars that run red lights increase accidents.

"Mission" is something good people have, don't you know. Don't go undermining it, just because you love to jabber about speech, assembly, petition, and perhaps even thinking the "mission" is a crock of old cheese. It is not enough to obey Big Brother; you have to love, really LOVE him.

The banner was not on school grounds, and the kids were released from school. The teacher made the kid a hero. Why not just laugh and shake your head? Of all the things that kids could be doing...

UPDATE: The first paragraph of the decision is delightful, for those of us who have teenage boys....

FactsOne January day, Coca-Cola and other private sponsors supported a “Winter Olympics Torch Relay” in Juneau, Alaska. Students were released from school so that they could2464 FREDERICK v. MORSE watch the Olympic torch pass by. Joseph Frederick, then an18-year-old senior at Juneau-Douglas High School, never made it to school that morning because he got stuck in the snow in his driveway, but he made it to the sidewalk, across from the school, where the torch would pass by. He and somefriends waited until the television cameras would catch it, then unfurled a banner reading “Bong Hits 4 Jesus.” Deborah Morse, the school principal, crossed the street, grabbed and crumpled up the banner, and suspended Frederick for tendays. He appealed the suspension administratively, but it was sustained. He then filed a 42 U.S.C. § 1983 action in the Federal District Court seeking declaratory and other relief.

"Never made it to school...but he made it to the sidewalk." Yes, indeed. My older son can't find his own bum with both hands, though he is way smarter than I ever was, or will be. Navigational skills, "what time is it?" skills, those he has trouble with.

Of course, it turns out that the student not going to school is germane, or possibly so, for the decision. What if the kid had gone to school, been released to go to the school parking lot, on school grounds, and had had that same poster? The principal could have taken it, then. The school can regulate such displays on school grounds, particularly when school is in session and during a school activity. But none of those things were true. As the decision says (and this made me chuckle, also):

This is no case of ignorance. The law was clear, and Morse was aware of it. The law of this circuit has provided explicit directives such that officials maydetermine which Supreme Court standards govern which types of potential student behavior. No novel question is posed on the basis urged by defendants—that “Bong Hits 4 Jesus” promoted a view contrary to government policy—because the armbands in Tinker raised the same concerns. The law of Tinker, Fraser, Kuhlmeier, Burch, and McMinnville is so clear and well-settled that no reasonable government officialcould have believed the censorship and punishment of Frederick’s speech to be lawful.62 In fact, there is nothing in the authorities that justifies what the school did, and no reasonable official could conclude otherwise. Morse fails thethird prong of the Saucier test.

(For Morse's reaction, or my speculation on that reaction, repeat this to yourself, using your best Homer Simpson voice: "STUPID third prong of the Saucier test!")

And the Bush Reich promised that they wouldn't abuse the powers granted under the "Patriot" act...

The founding fathers are weeping.

The constitution is apparently written on toilet paper.

But, LG! They promised, right?

An excerpt from the article:

My National Security Letter Gag Order

Friday, March 23, 2007; A17

It is the policy of The Washington Post not to publish anonymous pieces. In this case, an exception has been made because the author -- who would have preferred to be named -- is legally prohibited from disclosing his or her identity in connection with receipt of a national security letter. The Post confirmed the legitimacy of this submission by verifying it with the author's attorney and by reviewing publicly available court documents.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.